1837251 (Migration)

[2019] AATA 2761

1837251 (Migration) [2019] AATA 2761 (4 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1837251

MEMBER:John Cipolla

DATE:4 July 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 020 (Bridging B) visa.

Statement made on 04 July 2019 at 9:52am

CATCHWORDS
MIGRATION – cancellation – Bridging B (Class WB) visa – Subclass 020 (Bridging B) – Federal Circuit Court remittal – ground for cancellation – risk to safety of Australian community or individual – charged and convicted of selling and trafficking commercial quantity of illicit drugs – Australian Government’s National Drug Strategy 2015-2025 – consideration of discretion – pending application for a Remaining Relative visa – severity of crime – sentenced to 7 years of imprisonment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116

CASES
Gong v MIBP [2016] FCCA 561

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 501K of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 31 October 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 020 (Bridging B) visa under s.116 of the Migration Act 1958 (the Act).

2. This is an application for review of a decision dated 31 October 2017 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Bridging B visa under s.116 of the Migration Act 1958 (the Act).

3. The delegate cancelled the visa under s.116(1)(e) on the basis that the delegate believed that the presence of the applicant in Australia is or may be or would or might be a risk to the health, safety or good order of the Australian community . The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 24 June 2019 to give evidence and present arguments. The applicant was assisted by an accredited [interpreter].

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   BACKGROUND

6. The evidence before the Tribunal indicates that the applicant is a citizen of [Country 1].

7. The delegate cancelled the visa under s.116(1)(e) on the basis that the applicant had been charged with the selling and trafficking of the commercial quantity of [illicit drugs], namely [Drug 1] and as a consequence the presence of the applicant in Australia is or may be, or would or might be, a risk to the health, safety or good order of the Australian community or a segment of the Australian community. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

8. This matter was initially dealt with by the Tribunal (differently constituted) and a decision made on 12 July 2018. The Tribunal affirmed the decision of the Departmental delegate to cancel the applicant’s Bridging B visa.

9. The applicant sought judicial review of that decision. On 13 December 2018 the matter was remitted back to the Tribunal by consent on the basis that the previous Tribunal had miscarried in the exercise of its statutory discretion in paragraph 116(1)(e) to cancel the applicant’s Bridging B visa. In particular, in consideration of its discretion and the mandatory legal consequences that could flow from the decision to cancel the applicant’s Bridging B visa at paragraph [24] of its decision record, the Tribunal did not consider the consequences for the applicant’s pending application for a Remaining Relative visa or his liability for removal from Australia and his detention in immigration detention for that purpose.

   BACKGROUND

10. The evidence before the Tribunal indicates that the applicant was born in [Country 1] on [date]. The evidence indicates that the applicant first travelled to Australia as the holder of the Tourist visa in 2004. The applicant stated that in due course he made an application for a Remaining Relative visa in Australia and was granted an Associated Bridging visa. At the time of the cancellation of the applicant’s visa he held a Bridging B visa which allowed the applicant to travel outside Australia and return on multiple occasions for a period of 12 months that ended on 7 October 2017. The applicant’s Remaining Relative visa which was lodged in 2014 is according to the Departmental decision record, likely to take 50 years for release to final processing.

11. The evidence before the Tribunal indicates that the applicant was served with a Notice of Intention to Consider Cancellation (NOICC) of his Bridging B visa on 5 October 2017.  The NOICC indicates that the Department received information from the South Australian police that the applicant had been charged with possessing a large commercial quantity of controlled drug for sale, namely [a large quantity] of [Drug 1]. The alleged offence occurred [in] 2017 at [Town 1] in South Australia. The NOICC indicated that the applicant at that point in time was scheduled to appear before the Adelaide magistrates Court [in] November 2017 with regard to the charge and that the applicant had been remanded in custody pending the outcome of this matter in the criminal justice system. The NOICC invited the applicant to comment on whether he agreed that the grounds for cancellation of his Visa outlined in the NOICC existed and having regard to relevant discretionary considerations whether his Visa should be cancelled.

12. Evidence on the departmental file at folio 29 indicates that the applicant’s representative at the time [Mr A] of [Law Firm 1] wrote to the department to say that the applicant had only received the NOICC on 16 October 2017 and asked the delegate to refrain from making any premature decision on the cancellation of the applicant’s Visa until the applicant had an outcome with regard to the criminal proceedings. On 17 October 2017 the departmental delegate wrote to [Mr A] to query whether [Mr A] was representing the applicant in relation to the Visa cancellation matter and that if he was, that he should have reference to the NOICC to address the type of information relevant to the Departmental decision as to whether or not the applicant’s visa should be cancelled. 

13. The delegate also sought evidence from [Mr A] that he had been instructed to act on behalf of the applicant with regard to the visa cancellation. As this was not forthcoming the delegate proceeded to cancel the applicant’s visa in a decision made on 31 October 2017.

    REVIEW HEARINGS

14. The Tribunal convened a review hearing for 13 June 2019 via video conferencing facilities. The Tribunal attempted to contact the applicant via video conferencing facilities at [Prison 1] in [Suburb 1] South Australia.  The Tribunal was not able to obtain a video link to the applicant and only an audio link was able to be established. The Tribunal spoke to the applicant via the audio link with the assistance of the interpreter to advise that it did not wish to proceed with the hearing on 13 June 2019 via telephone and that the hearing would be adjourned to a future date to ensure that the applicant could appear before the Tribunal via video conferencing facilities. The applicant advised that his criminal matter was likely to be finalised [in] June 2019.

15. The Tribunal reconvened the hearing on 24 June 2019 via video conferencing facilities. The applicant appeared before the Tribunal and was assisted by an accredited [interpreter].

16. At the outset of the review hearing the Tribunal explained in detail the review process. The Tribunal made reference to the NOICC dated 5 October 2017. The Tribunal made reference to the decision of the delegate dated 31 October 2017. The Tribunal advised the applicant that the matter had been remitted by consent back to the Tribunal for reconsideration before a differently constituted Member, and the Tribunal made reference to the reason for the consent remittal.

17. The Tribunal made reference to the existence of a s.375A certificate on the Departmental file. The Tribunal noted that the existence of this certificate had been dealt with by its predecessor Tribunal at paragraph 5 of its decision dated 12 July 2018.

18. The Tribunal advised the applicant that it had also assessed the validity of the s.375A certificate and had formed the view that the certificate was valid. The Tribunal explained the operation of s.375A to the applicant and advised that the existence of this certificate meant that the information the subject of the certificate could not be released if it was contrary to the public interest to do so. The Tribunal noted that the Department had placed the certificate on the Departmental file as it revealed the email addresses and names of Departmental officers and Departmental processes that led to the cancellation of the visa holder’s visa. The Tribunal formed the view that the release of this information was contrary to the public interest and the Tribunal explained that there was no adverse information the subject of the s.375A certificate that it would be relying upon.  The Tribunal made reference to the predecessor Tribunal’s findings with regard to the s.375A certificate and that it agreed with those findings and that there was no basis for which the Tribunal would depart from those findings.

19. The applicant provided his personal details. The applicant advised that he arrived in Australia in 2004 as the holder of a Tourist visa and subsequently held Bridging visas based on a permanent visa application that he had lodged. The applicant advised that his father passed away in 1993. The applicant advised that his mother was an Australian citizen as was his only sibling, a sister, and both resided in Sydney. The Tribunal asked the applicant whether he was aware of the length of processing time for a Remaining Relative visa and he advised that he was not.

20. The Tribunal made reference to the offence for which the applicant was charged [in] 2017 in [Town 1] South Australia. The Tribunal noted at this time the applicant was found to be in possession of [large quantity of an illicit drug] and that he had been charged under section 32 of the Controlled Substances Act SA. The Tribunal asked the applicant whether he had legal representation in his criminal proceedings. The applicant stated that he had been legally represented throughout his criminal proceedings initially by [Mr B] a Sydney based criminal barrister and since the end of 2018 by [Mr C] a South Australian-based barrister. The Tribunal asked the applicant whether he had entered a plea in relation to the charge.  The applicant advised that he had pleaded not guilty. The applicant advised that he was the subject of a criminal trial in April 2019 before a judge only in the District Court of South Australia and at the trial finished in two days. The applicant stated that the trial was initially predicted to go for up to 2 weeks. The Tribunal asked the applicant why the trial finished faster than expected. The applicant stated that the prosecution did not provide much evidence and that the judge reserved his decision. The applicant stated that he was brought back to court [in] May 2019 at which time the judge delivered a guilty verdict. The applicant then attended the court for submissions on sentencing [in] June 2019 and was formally sentenced [in] June 2019 to 7 years of imprisonment. The Tribunal asked the applicant whether this was on top of the time that he had already served since been charged with the offence in 2017. The applicant stated that he had already served two years in prison and had five years of his term to go.

21. The applicant advised the Tribunal that he was appealing the conviction. The applicant advised that [Mr A], a lawyer from Sydney would be visiting him in prison within the next week.

22. The Tribunal asked the applicant about the purpose of his travel to and stay in Australia. The applicant stated that he initially arrived in Australia in 2004 on a Tourist visa and remained in Australia until 2010 before returning to [Country 1]. The applicant stated that he returned to Australia in 2014 on a Working Holiday visa. The applicant stated that he applied for a remaining relative visa in June 2014 and was issued with a bridging Visa. The Tribunal asked the applicant whether the bridging visa enabled him to work and he advised that it did give him permission to work and that he was also issued with a Medicare card. The applicant stated that he lived with his mother in [Suburb 2] in Sydney.

23. The Tribunal asked the applicant what he was doing in South Australia in 2017. The applicant stated that he was travelling to Melbourne via South Australia with a friend who was also [from Country 1]. The applicant stated that when he was found with drugs [in] 2017 the friend that he was travelling with was also charged and subsequently convicted and that he is serving his sentence in a different prison to the applicant. The applicant stated that his friend received the same sentence in terms of imprisonment that he had received.

24. The Tribunal asked the applicant whether he had complied with these conditions prior to being charged with a criminal offence [in] 2017 and the applicant advised that he had complied with visa conditions.

25. The Tribunal asked the applicant what hardship he believed he or his family would suffer if his visa remained cancelled. The applicant stated that he was innocent and was not guilty of the offence. The applicant stated that if his visa is cancelled that he will miss his family, and that the family will be split up. The applicant stated that his sister had undergone [treatment] in 2010 and that she was still not 100%. The applicant stated that his mother was now [age] and that he needed to provide support to his mother and sister. The Tribunal asked the applicant what hardship he would suffer personally. The applicant stated that his family are in Australia and his friends are in Australia.

26. The Tribunal made reference to the circumstances in which the ground for cancellation arose namely that the applicant had been charged by South Australian police with an indictable offence being in possession of and selling a commercial quantity of [an illicit drug]. There is no evidence before the Tribunal that indicates the circumstances which gave rise to the charges and subsequent conviction of the applicant were due to circumstances beyond his control.

27. The Tribunal has had regard to the visa applicant’s past and present behaviour towards the Department. There is no evidence before the Tribunal that indicates that the applicant had not been cooperative in his dealings with the Department.

    CONSIDERATION – DOES THE GROUND FOR CANCELLATION EXIST?

    Section 116(1)(e) - risk to Australian community or individual

28. The applicant’s visa was cancelled under s 116(1)(e) of the Act.

29. A visa may be cancelled under s.116(1)(e) if the Minister or his delegate is satisfied that the presence of the visa holder in Australia is or may be, or would or might be, a risk to the health, safety or good order of the Australian community or individual(s).

30. The Department’s Procedures Advice Manual (PAM3) sets out that when considering whether the ground set out in s.116(1)(e) is established, delegates must have regard to the nature of the offence and draw a logical or rational link to how the alleged offending poses a risk to the health, safety or good order of the Australian community or an individual(s). Relevantly PAM3 provides:

    For example, if a visa holder is charged with the commission of a violent offence, delegates must draw a connection between the nature of the alleged offence and the specified risk to health or safety that it poses. Property offences are not likely to pose a risk to the health or safety or good order of a segment of the Australian community or to the health or safety of an individual or individuals. . .

    For the ground at s.116(1)(e) to be made out, it is for the delegate to clearly identify the risk that the person’s presence in Australia poses to the health, safety or good order of the Australian community (or a segment of the Australian community, or to the health or safety of an individual or individuals). Delegates need to articulate the specific details or particulars of the risk.

31. The Tribunal is of the view that PAM3 represents an appropriate and accurate summary or guide on how the s 116(1)(e) should be interpreted and applied. It is clearly intended to be used as a guide for delegates in exercising the power and is consistent with the Tribunal’s view of the law.

32. In the Departmental cancellation decision the delegate makes reference to the power to cancel a visa under s.116(1)(e) and the potential risk encompassed in s.116(1)(e) namely that the presence of the visa holder is or may be a risk to the health, safety or good order of the Australian community. The delegate then notes that the visa applicant was charged with the possession and of [large quantity] of [an illicit drug] (a commercial quantity). The delegate then had regard to a report from the Australian Government’s National Drug Strategy 2015-2025 which indicates that the distribution and sale of illicit drugs in Australia affects all areas of the Australian community, not only those using the drugs but including associated family members and friends who may interact with them whilst the Australian community faces health, safety or good order outcomes as a result of these activities. The delegate also makes reference to publicly available information about [Drug 1] noting that it is a drug that damages the health of those who use it and that people that use [Drug 1] experience extreme weight loss, severe dental problems, intense itching, leading to skin sores from scratching, anxiety, confusion, sleeping problems, violent behaviour, paranoia and hallucinations . The delegate then went on to find that the visa holder’s actions were a risk to the health safety and good order of the Australian community.

33. It is sufficient for this provision to be engaged if the Tribunal is satisfied the applicant ‘may’ or ‘might’ be a risk to the safety of the Australian community.

34. The Tribunal finds has convicted of a serious charge that has engaged a custodial sentence and that the ground for cancellation in s.116(1)(e) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    CONSIDERATION – DOES THE GROUND FOR CANCELLATION EXIST?

    Section 116(1)(e) - risk to Australian community or individual

35. The applicant’s visa was cancelled under s 116(1)(e) of the Act.

36. A visa may be cancelled under s.116(1)(e) if the Minister or his delegate is satisfied that the presence of the visa holder in Australia is or may be, or would or might be, a risk to the health, safety or good order of the Australian community or individual(s).

37. The Department’s Procedures Advice Manual (PAM3) sets out that when considering whether the ground set out in s.116(1)(e) is established, delegates must have regard to the nature of the offence and draw a logical or rational link to how the alleged offending poses a risk to the health, safety or good order of the Australian community or an individual(s). Relevantly PAM3 provides:

    For example, if a visa holder is charged with the commission of a violent offence, delegates must draw a connection between the nature of the alleged offence and the specified risk to health or safety that it poses. Property offences are not likely to pose a risk to the health or safety or good order of a segment of the Australian community or to the health or safety of an individual or individuals. . .

    For the ground at s.116(1)(e) to be made out, it is for the delegate to clearly identify the risk that the person’s presence in Australia poses to the health, safety or good order of the Australian community (or a segment of the Australian community, or to the health or safety of an individual or individuals). Delegates need to articulate the specific details or particulars of the risk.

1. The Tribunal is of the view that PAM3 represents an appropriate and accurate summary or guide on how the s 116(1)(e) should be interpreted and applied. It is clearly intended to be used as a guide for delegates in exercising the power and is consistent with the Tribunals view of the law.

2. In the Departmental cancellation decision the delegate makes reference to the power to cancel a visa under s.116(1)(e) and the types of potential risk encompassed in s.116(1)(e) namely that the presence of the visa holder is or may be a risk to the health, safety or good order of the Australian community. The delegate then notes that the applicant was charged with possession of a commercial quantity of [an illicit drug] and the inherent risk that this drug poses to the Australian community. As noted [in] June 2019 the applicant, after being found guilty of the drug charges [in] May 2019, was sentenced to 7 years of imprisonment.

3. The Tribunal is satisfied that the ground for cancellation in s.116(1)(e) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

   CONSIDERATION – SHOULD THE DISCRETION BE EXERCISED

4. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

5. The Departmental guidelines pertaining to the exercise of discretion cover such matters as:

   ·the purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

   ·the extent of compliance with visa conditions

   ·degree of hardship that may be caused (financial, psychological, emotional or other hardship)

   ·circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

   ·past and present conduct of the visa holder towards the Department

   ·if breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate and compelling factors

   ·whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

   ·whether there would be consequential cancellations under s.140

   ·whether any international obligations would be breached as a result of the cancellation

   ·any other relevant matters.

   The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

6. The applicant is a citizen of the [Country 1]. The applicant first came to Australia in 2004 as the holder of a Tourist visa and he remained in Australia until 2010.  He then returned to [Country 1] returning to Australia in 2014 on a Working Holiday visa before applying for a Remaining Relative visa and being issued with a Bridging visa with work rights pending the outcome of his visa application.  At the time of the cancellation of his Bridging visa the applicant held a Bridging B visa which enabled him to travel in and out of Australia.  The Remaining Relative visa was lodged on the basis that the applicant’s mother and sister are citizens by grant and his father is deceased.

   The extent of compliance with visa conditions

7. There is no information before the Tribunal to indicate that the applicant has breached any visa conditions. The Tribunal gives this consideration some weight in favour of the applicant.

   Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

8. As has been noted the applicant claims that he was innocent and was not guilty of the offence. The applicant stated that if his visa is cancelled that he will miss his family, and that the family will be split up. The applicant stated that his sister had undergone [treatment] in 2010 and that she was still not 100%. The applicant stated that his mother was now [age] years old and that he needed to provide support to his mother and sister. No evidence pertaining to the applicant’s mother and sister’s financial situation was provided to the Tribunal.

9. The Tribunal gives weight to the above considerations in favour of not cancelling the visa.

   Circumstances in which ground of cancellation arose. As a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

10. The Tribunal discussed with the applicant at the review hearing that it has had regard to the evidence pertaining to his criminal conviction and its seriousness, reflected by the imposition of a custodial sentence.

11. The applicant as noted was charged by South Australian police with an indictable offence being in possession of and selling a commercial quantity of [an illicit drug] and has now been convicted of these offences in May 2019. There is no evidence before the Tribunal that indicates the circumstances which gave rise to the charges and subsequent conviction of the applicant were due to circumstances beyond his control.

    Past and present conduct of the visa holder towards the Department

12. Nothing adverse is known about the applicant’s past and present conduct towards the Department.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

13. The Tribunal has considered the mandatory legal consequences to cancel the applicant’s visa such as his detention or his removal from Australia. The Tribunal notes that the applicant has an outstanding application for a remaining relative visa. The Tribunal notes that the processing times for these visas are extensive. The Tribunal notes that the applicant as a result of his criminal conviction will spend the next five years in an Australian prison. The evidence before the Tribunal indicates that the applicant intends to appeal his criminal conviction but the outcome of any appeal is yet to be determined, and may take an extended period of time to reach the appeal stage. The Tribunal notes that as a consequence of the applicant’s current conviction that the grant of a permanent residence visa in the future will require the applicant to meet relevant character requirements. The criminal conviction may impact upon the applicant’s ability to meet such requirements down the track.

    Whether there would be consequential cancellations under s.140

14. The Tribunal notes that there are no consequential cancellations that would result as a consequence of the cancellation of the applicant’s visa and hence this discretionary consideration is not applicable in this case.

    Whether any international obligations would be breached as a result of the cancellation

15. There is no evidence before the Tribunal that Australia would be in breach of any international obligations as a result of the cancellation of the applicant’s visa.

    Any other relevant matters

16. The applicant has not raised any further matters.

    CONCLUSION

17. As has been cited above a visa may be cancelled under s.116(1)(e) if the Minister is satisfied that the presence of the visa holder in Australia is or may be, or would or might be, a risk to: the health, safety or good order of the Australian community or a segment of the Australian community; or the health or safety of an individual or individuals. There does not have to be, any direct, solid or certain foundation before the power can arise. It can arise on the possibility that some event occurred in the past: Gong v MIBP [2016] FCCA 561, at [41].

18. The evidence indicates that the applicant engaged in conduct that led to him being convicted of the sale and possession of a commercial quantity of an illicit drug, namely [Drug 1].  As a result the applicant was sentenced [in] June 2019 to a period of 7 years imprisonment which is reflective of the severity of the crime and of societal expectations of how such a crime should be dealt with.

19. Considering the circumstances as a whole, the nature of the criminal conviction and the Tribunal concludes that the visa should be cancelled.  The Tribunal accordingly affirms the decision under review.

    DECISION

20. The Tribunal affirms the decision to cancel the applicant’s Subclass 020 (Bridging B) visa.

    John Cipolla
    Senior Member